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HQ 963706




October 17, 2000

CLA-2 RR:CR:GC 963706ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 3307.90.0000

Mr. Jerome Schraub
MI-TU Instructional Services Inc.
P.O. Box 346
Alden Manor Branch
Floral Park, NY 110037

RE.: Tariff Classification of Weladol Antiseptic Shampoo; NY 863843 modified.

Dear Mr. Schraub:

In NY 863843, issued July 2, 1991, to you on behalf of your client, Pitman-Moore, the Director, Customs National Commodity Specialist Division, New York, among several products classified under the Harmonized Tariff Schedule of the United States (HTSUS), one, identified as Weladol Antiseptic Shampoo, was classified in subheading 3004.90.6003, HTSUS, which provides for medicaments for other veterinary use packaged for retail sale. We have reconsidered that ruling and determined that the classification of Weladol Antiseptic Shampoo is incorrect. The correct classification of Weladol Antiseptic Shampoo is in subheading 3307.90.0000, HTSUS, pursuant to the analysis set forth below.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY 863843 was published on September 13, 2000, in the Customs Bulletin, Volume 34, Number 37. No comments were received.

FACTS:

Weladol Antiseptic Shampoo is said to contain 1% iodine and is used to produce a shiny coat on domestic animals.

ISSUE:

What is the classification of Weladol Antiseptic Shampoo?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The 2000 HTSUS headings under consideration are as follows:

3004 Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale:

3004.90 Other:

3004.90.90 Other

3004.90.9003 For veterinary use

3307 Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere
specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties:

3307.90.0000 Other

NY 863848 classified Weladol Antiseptic Shampoo in heading 3004, HTSUS. That heading is contained in Chapter 30. When we refer to the Chapter Notes to Chapter 30, we see that they provide: 1. This chapter does not cover:
(d) Preparations of headings 3303 to 3307, even if they have therapeutic or prophylactic properties.

Therefore, we must determine whether Weladol Antiseptic Shampoo is a preparation of headings 3303 to 3307. If it is, the product cannot be classified in heading 3004, HTSUS.

Chapter Note 3 to Chapter 33 states:
"(3) Headings 3303 to 3307 apply inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings of a kind sold by retail for such use."

In its 23rd Session, held in May 1999, the Harmonized System Committee (HSC) decided, pursuant to GRI 1, that certain "special" (medicinal) shampoos were properly classified in subheading 3305.10, HTS, which provides for shampoos. (see Annex IJ/2 to HSC Document NC0090E1, May 1999).

Heading 3305, HTSUS, covers preparations for use on the hair and subheading 3305.10.000, HTSUS, covers shampoos. The ENs to heading 33.05 state that: "This heading covers:
(1) Shampoos, containing soap or other organic surface-active agents (see Note 1 (c) to Chapter 34 [which excludes such products from coverage in that Chapter]), and other shampoos. All these shampoos may contain subsidiary pharmaceutical or disinfectant constituents, even if they have therapeutic or prophylactic properties (see Note 1(d) to Chapter 30 [discussed above]).

The ENs make it clear that all products which are presented as shampoos, whether or not they contain any "special" or subsidiary constituents, are to be classified in subheading 3305.10 which specifically covers shampoos.

The Weladol Antiseptic Shampoo being classified is also a shampoo, however, it is one intended for animal rather than human use. Heading 3307 covers cosmetic and toilet preparations, not elsewhere specified or included. A consistent application of the principle that shampoos should be classified as shampoos even if they contain special or subsidiary constituents, such as, in this case, iodine, requires us to classify Weladol Antiseptic Shampoo in heading 3307. This classification is reinforced by the ENs to heading 33.07 which state: "This heading covers: (V) Other products, such as, (6) Animal toilet preparations, such as dog shampoos, and plumage-improving washes for birds."

HOLDING:

Weladol Antiseptic Shampoo insecticide shampoo is classified in subheading 3307.90.0000, HTSUS, which provides for Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties: Other.

NY 863843, dated July 2, 1991, is modified in accordance with this ruling. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,


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